People v. Walsh

2024 IL App (3d) 230033-U

• Court: Appellate Court of Illinois
• Decided: August 14, 2024
• Docket: 3-23-0033
• Status: Unpublished

Opinion

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

2024 IL App (3d) 230033-U

Order filed August 14, 2024 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 18th Judicial Circuit, ) Du Page County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-23-0033 v. ) Circuit No. 21-CM-1759 ) THOMAS M. WALSH, ) Honorable ) Robert A. Miller, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE HETTEL delivered the judgment of the court. Justices Holdridge and Peterson concurred in the judgment. ____________________________________________________________________________

ORDER

¶1 Held: (1) The evidence was sufficient to disprove defendant’s affirmative defense. (2) The circuit court did not improperly increase defendant’s sentence.

¶2 Defendant, Thomas M. Walsh, appeals his conviction for battery arguing that the State

failed to disprove his affirmative defense of use of force to protect property. Further, defendant

asserts that the Du Page County circuit court improperly increased his sentence after hearing his

statement in allocution which proclaimed his innocence. We affirm. ¶3 I. BACKGROUND

¶4 On June 22, 2022, defendant was charged by superseding information with four counts of

battery, alleging defendant grabbed Paige Donahue’s arms and hair (720 ILCS 5/12-3(a)(1),

(2) (West 2020)). On September 28, 2022, defendant filed notice that he intended to “assert the

Affirmative Defense of Use of Force in Defense of Other Property, pursuant to 720 ILCS 5/7-3.”

The case proceeded to a bench trial.

¶5 At trial, Donahue testified that on December 17, 2021, she was in the passenger seat of

defendant’s vehicle. While driving, Donahue said to defendant “You technically raped me last

night” which “triggered” defendant causing him to pull off the road into a parking lot. Donahue

testified that defendant took her cell phone. She attempted to retrieve it from him, but defendant

exited the vehicle. Donahue sat in the passenger seat with her feet outside the open door.

Defendant came around the vehicle, removed Donahue’s bag from the backseat, and approached

her. Defendant grabbed Donahue’s shoulders and shook her violently. Donahue’s head struck the

top of the vehicle several times. Her vision became blurry, and she felt like she was going to

have a seizure. Donahue was “scared and petrified.”

¶6 Donahue explained that she suffered from both epileptic seizures and stress induced

seizures. She testified that she did not know whether she experienced a seizure during the

incident with defendant but did suffer two seizures after returning home. Donahue explained that

she does not remember anything during her seizures but afterwards, she feels unsteady and

fatigued.

¶7 On cross-examination, Donahue stated that she met defendant for the first time the night

before the incident. Defendant had picked her up in Wheaton and drove her to his apartment in

Chicago. Donahue indicated that on December 17, 2021, defendant “obviously wanted [her] to

2 get out of the car. He *** tried to drag [her] out of the car, like, shaking [her] and dragging

[her].” She testified that defendant did not ask her to exit the vehicle, explaining that “[i]f he

would have asked [her], it would be a different story[.]” Donahue indicated that defendant

removed her bag from the vehicle and “came right at [her] afterwards.” Donahue did not notice

that he had removed her bag until the ambulance arrived. Donahue did not remember speaking

with the initial officer on the scene. She was in shock and only remembered sitting by the

officers and crying. When the paramedics arrived, she declined medical treatment. Donahue

indicated that she told them she would seek medical attention the next day because she was too

exhausted at that time. Donahue expressed confusion at various points throughout her testimony,

which she indicated came from her inexperience with court proceedings and another open case

against defendant.

¶8 Wheaton Community Service Officer Neil Waldschmidt testified that on December 17,

2021, he was on patrol and observed what he initially believed to be a traffic crash. He

approached to offer his assistance and observed defendant involved in a physical altercation with

Donahue in his passenger seat. Waldschmidt indicated that defendant appeared to be attempting

to remove her from the vehicle. Defendant was pulling Donahue by one arm and she appeared to

be struggling to remain in the vehicle. The altercation lasted approximately 15 to 20 seconds.

Waldschmidt indicated that as he approached, defendant was irate and screaming that he wanted

Donahue out of the vehicle. Donahue was crying, saying that defendant had pulled her hair.

Waldschmidt asked defendant several times to stay away from the vehicle. Defendant did not

obey Waldschmidt’s commands “until, at one point, he went to the driver’s side of the vehicle

and retrieved something from under the seat and walked away.” Waldschmidt observed no

visible injuries to Donahue, or any hair missing from her head.

3 ¶9 Wheaton Police Officer James Gutierrez testified that on December 17, 2021, he was

dispatched to investigate a report of a man forcibly removing a woman from a vehicle. When

Gutierrez arrived, defendant had been detained by other officers. Gutierrez spoke with Donahue.

He did not observe any visible signs of injury and indicated that she refused medical treatment.

After completing his investigation on the scene, Gutierrez arrested defendant for battery. At the

police station, Gutierrez interviewed defendant. A portion of the video recorded interview was

admitted and played for the court. In the recording, defendant explained his version of events.

Defendant indicated that Donahue

“rolled the window down *** when I pulled over to tell her to get out. She told

somebody else I raped her, and I said get out of here, you know. So, then I went to

grab her and then she fell back, *** she was in her seat *** and then that’s what

ripped her shirt ***.”

Defendant further explained that after Donahue began lying about being sexually assaulted, he

told her that he would be taking her home. She refused to provide him with an address, so he told

her to exit the vehicle. Donahue then informed defendant she would be calling the police. At that

point, defendant took Donahue’s cell phone.

¶ 10 The State also admitted a surveillance video from the parking lot where the incident

occurred. The video depicted defendant’s vehicle sitting in the parking lot. Defendant exited the

vehicle, and Donahue opened the passenger door and turned sideways, sitting with her feet on

the ground. Defendant came around the vehicle, opened the rear passenger door, and removed a

blue bag. He set it on the ground, leaving the door open. Defendant then turned and approached

the driver of a nearby white van. Defendant returned to his vehicle, shut the rear passenger door,

and immediately approached Donahue. He reached for her, and a physical altercation ensued.

4 Waldschmidt can be seen approaching from the street. Defendant disengaged from Donahue and

walked around to the driver’s side of the vehicle. He appeared to retrieve something from the

vehicle and walked toward the building. Donahue stayed in the passenger seat until police

arrived. Upon their arrival, she exited defendant’s vehicle and approached the officers. Donahue

appeared to be agitated and, after a period, collapsed to the ground.

¶ 11 The court found defendant guilty of committing a battery of an insulting and provoking

nature against Donahue by grabbing her about the arms. Defendant was acquitted of the three

remaining charges. In so finding, the court explained that defendant “can protect his own

property, but he has to use that amount of force which he believes is reasonably necessary to

protect the property.” The court indicated that in addition to the testimony of Donahue and a

direct witness to the events, Waldschmidt, what it saw during its review of the surveillance video

was defendant “get out of the car, go to the back door, throw her bag on the ground, open up the

door and it looked like he was then just struggling to pull her out of the car.”

¶ 12 The court further found that the use of force was not necessary because there was no

immediate need with no threat of destruction or damage. Further, the court did not see any

evidence that defendant told Donahue to exit the vehicle, stating: “I didn’t see anything that

looked like any sort of conversation. It looked like it went from zero to 100 without any sort of

stopping for dialogue.”

¶ 13 The case proceeded to immediate sentencing. The State requested one year of probation,

10 days in jail, and anger management classes. It disclosed that defendant had minimal criminal

history with only two prior court supervision dispositions for driving under the influence of

alcohol in 2011 and domestic battery in 2001. Defense counsel argued for a term of court

5 supervision with a no contact provision and anger management classes. Defendant made the

following statement in allocution:

“You know, I had a dash camera that had every bit of evidence; and the

cop said *** it was going to be there; and, sure enough, it wasn’t there. And it had

all the video and everything you need to know, and somehow you guys come out

with some other angle. The court system is a farce. You know what I mean? I put

my arm through a window after the first incident I had because this girl blew up

naked pictures of me. You know, and the same incident, right, 20 years later she

said I raped her. I didn’t rape her. Like, if someone says that about you, you’re

going to be happy with that and say, Let me drive you around to no address.

Nobody is. But, I mean, understand—I did—You know, because I had no thought

going on; and then it just brought me back to 20 years ago. And then, all the

while, my pain is through the roof. I put my arm through a window and it’s never

going to go away. So whatever you said, I was shaking her with both of my

hands, this one hand doesn’t even move. So when she—She grabbed with me. She

came up and then she sat down and pulled me back down. That, to me, that was a

little more than—I didn’t do anything harsh to her. She did more to me than I did

to her on that sit-down.”

The court pronounced its sentence, stating:

“All right, sir. Well, unfortunately, [defense counsel] had convinced me

that you were a good candidate for court supervision. You have convinced me

otherwise. You haven’t said anything about the victim. You haven’t shown one

iota of remorse. It’s all about you and how you’ve been mistreated by the system,

6 by the victim, by the police, no one here has been victimized more than you. That

does not show a person who is likely to succeed on a term of court supervision.

[Defense counsel] had it for you. Congratulations, sir. Your attitude in the

courtroom is depriving you of court supervision.”

The court sentenced defendant to one year of conditional discharge, no contact with Donahue,

and anger management classes. Defendant appealed.

¶ 14 II. ANALYSIS

¶ 15 On appeal, defendant argues that the State failed to disprove his affirmative defense that

he used force to defend his property from Donahue’s trespass. Further, defendant contends that

the court improperly increased his sentence from court supervision to conditional discharge after

hearing his statement in allocution in which he proclaimed his innocence.

¶ 16 A. Affirmative Defense

¶ 17 When a defendant presents evidence supporting the affirmative defense of property, “the

State [is] required to disprove the affirmative defense[s] in addition to proving the elements of

the charged offense.” People v. Bausch, 2019 IL App (3d) 170001, ¶ 22. “The relevant standard

of review is whether, after considering the evidence in the light most favorable to the State, any

rational trier of fact could have found, beyond a reasonable doubt, that defendant did not act” in

defense of property. People v. Lee, 213 Ill. 2d 218, 225 (2004). In relevant part, “[a] person is

justified in the use of force against another when and to the extent that he reasonably believes

that such conduct is necessary to prevent or terminate such other’s trespass on or other tortious or

criminal interference with *** personal property, lawfully in his possession ***.” 720 ILCS 5/7-

3(a) (West 2022). The trier of fact is responsible for determining the credibility of the witnesses,

7 the weight to be afforded their testimony and any reasonable inferences to be drawn from the

evidence. People v. Gray, 2017 IL 120958, ¶ 35.

¶ 18 Here, the court heard all the evidence, including defendant’s videotaped statements that

he told Donahue to exit his vehicle. It found defendant guilty on only one of four counts of

battery. It made that finding based on its review of the surveillance video where a physical

interaction occurred, but no conversation appeared to take place between defendant and

Donahue. It also considered the testimony of both Waldschmidt and Donahue. The court was

able to observe the incident on the video and weigh the credibility of the witnesses. While

defendant argues that Donahue was not credible, we defer to the court’s credibility findings as

they are not manifestly erroneous. See People v. Ceja, 204 Ill. 2d 332, 347 (2003).

¶ 19 The court found that the defense of property failed because there was no evidence that

defendant’s property was in any immediate danger or that Donahue had been told to exit the

vehicle. Defendant argues that Donahue was trespassing. However, having been invited to ride in

the vehicle, Donahue must have been given notice to exit the vehicle and a reasonable

opportunity to depart before she can be said to be trespassing, which the court found did not

happen. See People v. Mims, 8 Ill. App. 3d 32, 34-35 (1972) (defendant could not be convicted

of criminal trespass where he was arrested immediately after being advised to leave without

being given a reasonable opportunity to depart).

¶ 20 Defendant points out that, in his videotaped interview with police, he told them that he

had asked Donahue to exit the vehicle. However, the court was under no obligation to accept the

unsworn statements by defendant to the police as true. See People v. Ferguson, 204 Ill. App. 3d

146, 151 (1990) (“The trier of fact is not required to accept defendant’s version of the facts, but

may consider its probability or improbability in light of the surrounding circumstances.”); People

8 v. Schaefer, 87 Ill. App. 3d 192, 194 (1980) (stating the trier of fact is not required to “accept a

defendant’s exculpatory statement as true even in the absence of directly contradicting evidence

by other witnesses”). This is especially the case where Donahue testified that defendant did not

tell her to exit the vehicle, which the court believed. Accordingly, sufficient evidence was

presented by the State to justify the court’s finding that the use of force was unnecessary.

¶ 21 B. Sentencing

¶ 22 Defendant next argues that because the court believed court supervision was an

appropriate sentence prior to hearing defendant’s statement in allocution, it improperly increased

defendant’s sentence after hearing his claims of innocence. Defendant acknowledges that he

forfeited this issue and requests that we review his unpreserved claim under the plain error

doctrine. See Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967). (“Plain errors or defects affecting substantial

rights may be noticed although they were not brought to the attention of the trial court.”). The

first step of the plain error analysis is to determine whether an error occurred. People v.

Eppinger, 2013 IL 114121, ¶ 19.

¶ 23 “In determining the appropriate sentence, the trial judge must consider all matters

reflecting upon the defendant’s personality, propensities, purposes, tendencies, and indeed every

aspect of his life relevant to the sentencing proceeding.” People v. Ward, 113 Ill. 2d 516, 527

(1986). Absent an abuse of discretion, a court’s sentencing decision will not be reversed. People

v. Bush, 2022 IL App (3d) 190283, ¶ 118. “Consideration of an improper factor in aggravation

affects a defendant’s fundamental right to liberty, and therefore, is an abuse of discretion.”

People v. McAfee, 332 Ill. App. 3d 1091, 1096 (2002). A court may not impose a more severe

sentence merely because a defendant maintains his claim of innocence. People v. Donlow, 2020

IL App (4th) 170374, ¶ 84. However, a court may consider a defendant’s lack of remorse when

9 fashioning an appropriate sentence because it may have a bearing on defendant’s potential for

rehabilitation. People v. Coleman, 135 Ill. App. 3d 186, 188 (1985); see Ward, 113 Ill. 2d at 529

(explaining that relevant evidence of defendant’s potential for rehabilitation may be conveyed

through his “continued protestation of innocence and his lack of remorse”). Nonetheless,

protestations of innocence and lack of remorse “must not be automatically and arbitrarily applied

as aggravating factors.” Id.

¶ 24 Here, the court did explicitly state that prior to defendant’s statements it believed he was

a good candidate for court supervision, however, after receiving evidence of defendant’s lack of

remorse and attitude toward the court system, the court determined that defendant was unlikely

to successfully complete a term of court supervision. The court made no mention of defendant’s

claims of innocence. It properly considered defendant’s statements in determining his

rehabilitative potential and ability to successfully complete court supervision. See People v.

Charleston, 2018 IL App (1st) 161323, ¶ 29 (courts can consider lack of remorse as indicative of

defendant’s character and prospects for rehabilitation). Thus, the court did not err in sentencing

defendant.

¶ 25 III. CONCLUSION

¶ 26 The judgment of the circuit court of Du Page County is affirmed.

¶ 27 Affirmed.